Torben Spaak (Uppsala University – Law) has posted Moral Relativism and the Rechtsstaat on SSRN. Here is the abstract:
The purpose of the Rechtsstaat is to protect individuals against the coercive power of the state, and this presupposes, inter alia, that court decisions are predictable – if court decisions weren’t predictable, then individuals would not be able to plan their lives so as to avoid the coercive power of the state. But there is a problem here. Court decisions often depend on statutory interpretation, statutory interpretation often depends on moral considerations, and moral considerations, I shall argue, can be true or valid only in light of a moral framework that itself is no truer or more valid than any other moral framework. Since on this analysis, there is no such thing as a moral judgment that is true or valid simpliciter, there can be no such thing as an interpretation of a statute that is true or valid simpliciter; and since it may be quite difficult to predict which (relative) moral framework the court will adopt in the interpretive process, we may in many cases be unable to predict court decisions. And if this is so, the purpose of the Rechtsstaat may be thwarted. In this article, I intend to consider the relativistic challenge to the ideal of the Rechtsstaat more closely. My position is that the challenge cannot be met.